Monthly Archives: March 2012

Wednesday, the last of three days of oral arguments on the federal health care reform law, Solicitor General Edwin Kneedler urged the Court to sever any portion of the law held unconstitutional from the rest of the statute.

“Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?”Justice Scalia asked, drawing loud laughter from the packed courtroom.

It was fitting that during such an historic week at the Court, Scalia would garner an unprecedented number of laughs: a whopping 15, easily earning him the title of the Funniest Justice of the week, and all but cementing his fourth consecutive title for the whole term.

There was apparently plenty to laugh at about the health care law and its individual mandate. In addition’s to Scalia’s comedic quips, Justices Anthony Kennedy, Stephen Breyer and Elena Kagan each earned three laughs, and Chief Justice John G. Roberts and Justice Sonia Sotomayor each earned one.

With only two weeks to go, here are the standings for the term so far:

But at the close of oral arguments in one of the most closely-watched Supreme Court cases in modern history, one thing is certain: no one is certain about what the Court will do.

After hours of watching the justices question the parties’ positions, argue points with one another, and perhaps even test the strength of their own views through the questions they posed to the attorneys arguing the case, there is no clear majority on most of the crucial issues presented to the Court (my only guess is that the justices will likely not put off deciding the constitutional issues until 2015 under the Anti-Injunction Act, which was argued Monday).

But perhaps the most interesting – and frankly, the most candid – observation of the week came from Justice Antonin Scalia this morning. As the justices and attorneys debated whether the Court had the power to strike down part of the law while leaving the rest intact, or if that act would interfere with Congress’ power, Scalia said:

“[There] is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same.”

Indeed, the outcome of the case will have not only an immense impact legally, but politically as well. Regardless of the outcome, the Supreme Court has already left its mark.

The Court appeared quite divided over the constitutionality of the health care law’s insurance coverage mandate yesterday, meaning that the issue the justices take up today could be crucial in keeping any part of the law alive.

Today the justices consider whether mandate provision is severable from the rest of the law. That issue could give justices who have questions about the constitutionality of the mandate a little more wiggle room to rule against it, knowing that such a ruling won’t topple the law entirely.

But today the government also gets the ears of the justices one last time, and could use that time not only to argue the severability issue, but also to reinforce its position that the whole law, mandate included, should stand.

The Court will also take up whether the law can require states to extend Medicaid coverage.

As always, stay tuned for updates here on DC Dicta and on Lawyers USA Online. I’ll also be tweeting right up until I go into the Twitter-free courtroom, so and follow DC Dicta.

The scene today outside of the Supreme Court was much more dramatic, as it was inside the courtroom as the justices grilled attorneys on both sides of the constitutional challenge to the federal health care law’s individual mandate about the limits of congressional power.

Justice Antonin Scalia expressed strong doubts about the law’s constitutionality, presumably joining justice Clarence Thomas – who has expressed views outside of the courtroom about the strict limits of the Commerce Clause power – in likely voting against the law. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan seem to be in favor of upholding the law.

That means the votes of Chief Justice John G. Roberts and Justice Anthony Kennedy and Samuel Alito could still be in play – though Alito asked far fewer questions of the attorneys for the parties challenging the law’s constitutionality.

Outside the courthouse there were many more protesters than yesterday, with members of the Tea Party and other opponents of the law trying to out-shout the law’s supporters.

After wrangling with a complicated and obscure procedural issue yesterday, today the justices of the Supreme Court will get to the heart of the health care case: the constitutionality of a provision requiring most uninsured Americans to buy health insurance.

That doesn’t mean that the discussion today will be simpler. The justices and attorneys arguing the case must tackle the 18th century language of the Constitution’s Commerce Clause. That is where the Court must find the answer to whether the framers intended to give Congress the authority to regulate and sanction the failure to buy health insurance.

As the justices of the U.S. Supreme Court began hearing arguments in one of the most anticipated group of cases in decades – the challenge to the federal health care law, its individual mandate, Medicaid expansion and possible jurisdictional bar – the crowds outside the courthouse appeared a bit tamer than expected, given the widespread media attention the matter has garnered.

Before the arguments began, the line that had once wrapped around the building was much shorter, although it was clear from the sleeping bags and other gear on the scene that several people had been there for days. Our reports had people lining up on Friday afternoon.

Several of the people who remained in the line were paid line-waiters – those commissioned to do the footwork of securing a seat for one of the three oral argument days for a fee.

Media and protesters converge in front of Supreme Court stairs

But by the conclusion today’s 90-minute oral arguments – on the jurisdictional issue of whether the Anti-Injunction Act bars the states and other parties from bringing a challenge to the law before it is fully implemented in 2015 – media types outnumbered protesters, line-waiters and others who had gathered just to take in the spectacle.

More on the substance of today’s arguments to come later today on Lawyers USA online. Tomorrow DC Dicta will be back on the scene tweeting and blogging as the Court takes up the meat of the challenge – whether Congress had the authority to impose a mandate that individuals purchase health care coverage. Stay tuned!

Before the Supreme Court gets to the meat of the health care challenge – the issue of whether Congress had the authority to impose an individual coverage mandate – the Court must first wrestle with an issue none of the parties wanted it to address: whether the challenge can be heard at all.

Today, the first of three days the Court has dedicated to hearing oral arguments on several issues involved in the health care challenge, the Court takes up the Anti-Injunction Act. That law provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”

In 90 minutes of oral arguments today, the justices will consider whether that law applies to the Patient Protection and Affordable Care Act – most specifically, whether the penalty imposed on individuals who do not purchase health care coverage amounts to a tax.

If the court finds that the law applies, the Court must also decide whether it is a jurisdictional bar to bringing the health care challenge altogether, or whether it is simple a defense which can be raised by the government – which abandoned that argument earlier in the litigation. If the Court rules that it is the former, that would bar challenges to the law until at least 2015, after the law has been fully implemented and penalties have begun to be assessed.

“Policemen frequently don’t arrest people for everything they might arrest them for,” Justice Stephen Breyer pointed out Wednesday during oral arguments in the case Reichle v. Howards. “I mean jaywalking, to take an example. There are all kinds of things where they just normally don’t arrest somebody. … I might sometimes have driven 60 miles an hour in a 55-mile zone. And I shouldn’t even admit this. I hope I get away with it.”

That comment earned Breyer one of the six laughs he received this week from the courtroom audience, making him the week’s Funniest Justice, and helping him chip away at fellow funnyman Justice Antonin Scalia’s lead for the term. With just three weeks of oral arguments left, can Breyer pull off an upset and best the three-time Funniest Justice champ?

After the U.S. Supreme Court granted criminal defendants constitutional post-conviction rights to effective assistance to counsel in a pair of decisions Wednesday, Justice Antonin Scalia delivered a rare – and vocal – dissent from the bench, saying the “absurd” rulings stretch the Constitutional beyond its limits.

In the cases Martinez v. Ryan and Lafler v. Cooper, the Court held that, in some circumstances, defendants can get relief for ineffective assistance of counsel in post-conviction proceedings and during the plea bargaining stage if the bad advice from counsel leads to a more severe punishment than the prisoner would have received but for the poor legal guidance.

After Justice Anthony Kennedy, who authored both majority opinions, announced the rulings from the bench Wednesday, Scalia launched into a lengthy and sharply-worded oral dissent, saying the rulings essentially give defendants a new constitutionally-protected “right to plea bargain” and “escape a fair trial.”

“The ultimate focus of any ineffective assistance case must be the fundamental fairness of the proceeding,” not the possibly more favorable result for the defendant, Scalia complained, noting that the defendants in both cases were “without a doubt both guilty, and have been judged so and sentenced.”

Though problems can arise during the post-trial phase, that’s an issue for lawmakers to address, Scalia said. “The Constitution is not a judicial cure-all for all of society’s problems,” Scalia said. “It is not wise; it is not right.”

Read more about this week’s ruling, the health care arguments on tap next week and lots of other Supreme Court news on the Supreme Court Report.

As lawmakers prepare to take up the controversial tort reform legislation later this week, the measure is creating a strange coalition of opponents seeking to stop the bill in its tracks.

As we’ve reported in Lawyers USA, the trial lawyers’ group the American Association for Justice has actively opposed H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act. The bill, which would cap non-economic damages in medical negligence cases at $250,000 and repeal part of the federal health care law aimed at cutting Medicare costs, is set for a House vote later this week.

But AAJ officials say the bill affects far more than medical malpractice cases. It is a “far-­reaching bill that would affect caps on damages, limits on attorneys’ fees, medical negligence law, nursing home cases, medical device and pharmaceutical cases, and bad faith cases against health insurers,” according to a message to AAJ’s membership.

AAJ officials tell me that the bill would also thwart suits against doctors who commit intentional torts, such as sexual abuse.

Meanwhile, conservative groups such as the Heritage Foundation and the Tea Party movement have also attacked the measure, saying it infringes upon states’ rights and violates the Commerce Clause, according to the InjuryBoard’s Andrew Cochran.

“The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5’s reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims,” Spakovsky writes.